February 29, 2012

A former George W. Bush administration lawyer, best known for authoring several controversial memos defending “advanced interrogation techniques” such as waterboarding, sparked more debate on Capitol Hill Wednesday over the indefinite detention of U.S. citizens suspected of terrorism.

Steven Bradbury, now a partner at Dechert in Washington, testified at a Senate Judiciary Committee that a new bill would threaten national security because it requires the government to file criminal charges against terrorism suspects to keep them in custody, when arrested on American soil.

Under the bill, certain rights for the suspect – hearing Miranda warnings, being allowed to remain silent, getting an attorney – could impede the ability of the government to gain intelligence from that combatant on a developing threat, Bradbury told the senators.

And the eventual trial could mean that the government would risk having to disclose sensitive intelligence information to gain a conviction, so they might decide to file fewer or less serious charges than the suspect’s actions call for, he said.

“They’re going to have to divulge it, they’re going to have to present it as evidence,” Bradbury testified, stressing that he was only speaking on behalf of himself. Bradbury led the Justice Department's Office of Legal Counsel from 2005 until the end of the Bush administration.

And Bradbury said the detainees have access to a judicial review of their situation with a habeas corpus petition.

The testimony drew a rebuke from Sen. Diane Feinstein (D-Calif.), who is leading the push for the new law. She says it is necessary to uphold the “core values” of the Constitution, and prevent situations like the American detention camps during World War II, where Japanese-Americans were held during the war.

Feinstein, the chair of the Senate Intelligence Committee, said she is in a position to know that intelligence gathering was not harmed in cases where charges were filed against terrorist suspects. And she said, “I really dispute that” detainees learning their rights harms the government.

Sen. Lindsey Graham (R-S.C.), said that his primary goal is “to get as much good intelligence as we can when we capture somebody.”

“Once we capture these guys, I don’t want to read them their Miranda rights. I want them to be unsure,” Graham said.

Feinstein said U.S. intelligence has never been as efficient as it is today, with 10,000 to 15,000 people who collect intelligence. “I think there really is a basic need [for the law], because being in the wrong place at the wrong time, and looking the part: Japanese-Americans, that’s how they got interned.”

Comments

Bradbury and Graham are right - but only as right as cops are, when they say they'd rather any criminal arrestee be unsure of whether they should talk, and they'd rather get all possible info about the crime in order to prevent it from continuing or recurring.

The argument for stripping terrorism suspects of rights is no different in nature than the argument for stripping those rights from Mafia suspects, espionage suspects, serial-murder suspects or any other suspects. The only difference is in degree of risk. Which may cause more deaths - letting organized crime family continue, or failing to catch a terrorist's accomplices?

You can never know. And until you know, there's no excuse to contravene the Constitution. In fact, maybe no excuse is good enough even if you do know.